Case: 1:16-cv-08637 Document #: 4377 Filed: 03/01/21 Page 1 of 19 PageID #:293064
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
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`No. 1:16-cv-08637
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`Honorable Thomas M. Durkin
`Magistrate Judge Jeffrey T. Gilbert
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`
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`IN RE BROILER CHICKEN ANTITRUST
`LITIGATION
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`
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`This Document Relates To:
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`All End-User Consumer Plaintiff Actions
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`MEMORANDUM OF LAW IN SUPPORT OF MOTION
`FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENTS
`BETWEEN END-USER CONSUMER PLAINTIFFS
`AND TYSON, FIELDALE, PECO FOODS AND GEORGE’S DEFENDANTS
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`I. 
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`II. 
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`TABLE OF CONTENTS
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`INTRODUCTION ...............................................................................................................1 
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`SUMMARY OF LITIGATION ...........................................................................................1 
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`III. 
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`SUMMARY OF SETTLEMENT NEGOTIATIONS AND TERMS .................................2 
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`A. 
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`B. 
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`C. 
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`Fieldale Settlement ...................................................................................................3 
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`Peco and George’s Settlements ................................................................................4 
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`Tyson Settlement .....................................................................................................5 
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`THE SETTLEMENTS FALL WITHIN THE RANGE OF POSSIBLE APPROVAL .......7 
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`THE COURT SHOULD CERTIFY THE PROPOSED SETTLEMENT CLASS ..............9 
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`A. 
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`The Proposed Settlement Class Satisfies Rule 23(a) ...............................................9 
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`IV. 
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`V. 
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`1. 
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`2. 
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`3. 
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`4. 
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`Numerosity ...................................................................................................9 
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`Commonality................................................................................................9 
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`Typicality ...................................................................................................10 
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`Adequacy ...................................................................................................10 
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`B. 
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`The Proposed Settlement Class Satisfies Rule 23(b)(3) ........................................11 
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`VI. 
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`EUCPS PROPOSE TO SEND NOTICE AFTER THE CERTIFICATION OF A
`LITIGATION CLASS, OR AFTER THEY HAVE COLLECTED SUFFICIENT
`CONTACT INFORMATION ............................................................................................12 
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`VII.  CONCLUSION ..................................................................................................................14 
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`
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`TABLE OF AUTHORITIES
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`FEDERAL CASES
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`Page(s)
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`Am. Int’l Grp., Inc. v. ACE INA Holdings, Inc.,
`2012 WL 651727 (N.D.Ill. Feb.28, 2012) .................................................................................8
`
`Armstrong v. Bd. of Sch. Dirs.,
`616 F.2d 305 (7th Cir. 1980) .....................................................................................................7
`
`Burns v. Elrod,
`757 F.2d 151 (7th Cir. 1985) ...................................................................................................13
`
`City of Greenville v. Syngenta Crop Protection, Inc.,
`2012 WL 1948153 (S.D. Ill. May 30, 2012) ............................................................................13
`
`De La Fuente v. Stokely-Van Camp, Inc.,
`713 F.2d 225 (7th Cir. 1983) ...................................................................................................10
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`Gautreaux v. Pierce,
`690 F.2d 616 (7th Cir. 1982) .....................................................................................................7
`
`Kleen Prods. LLC v. Int’l Paper Co.,
`831 F.3d 919 (7th Cir. 2016) ...................................................................................................11
`
`Messner v. Northshore Univ. HealthSystem,
`669 F.3d 802 (7th Cir. 2012) ...................................................................................................11
`
`Mullins v. Direct Digital, LLC,
`795 F.3d 654 (7th Cir. 2015) ...................................................................................................11
`
`Prac. Mgmt. Support Servs., Inc. v. Cirque du Soleil, Inc.,
`301 F. Supp. 3d 840 (N.D. Ill. 2018) ...................................................................................9, 12
`
`Retired Chicago Police Ass’n v. City of Chicago,
`7 F.3d 584 (7th Cir. 1993) .......................................................................................................10
`
`In re Rubber Chems. Antitrust Litig.,
`232 F.R.D. 346 (N.D. Cal. 2005) .............................................................................................10
`
`Saltzman v. Pella Corp.,
`257 F.R.D. 471 (N.D. Ill. 2009) ...............................................................................................10
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`Wal-Mart Stores, Inc. v. Dukes,
`564 U.S. 338 (2011) .................................................................................................................10
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`Sherman Act...............................................................................................................................1, 12
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`FEDERAL STATUTES
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`FEDERAL RULES
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`Federal Rule of Civil Procedure 23 ....................................................................................... passim
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`I.
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`INTRODUCTION
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`End-User Consumer Plaintiffs respectfully move for preliminary approval of settlements
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`with Defendants Fieldale ($1.7 million),1 Peco ($1.9 million),2 George’s ($1.9 million),3 and
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`Tyson ($99 million)4 (collectively, “Settling Defendants”). These icebreaker settlements –
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`negotiated at arm’s length – provide $104 million in total relief to the EUCPs. Settling Defendants’
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`agreement to provide cooperation will also strengthen EUCPs’ case against the remaining
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`Defendants.
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`In addition, , the settlements fall within the range of possible approval under Federal Rule
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`of Civil Procedure 23(e), the proposed settlement class satisfies the requirements of Federal Rule
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`of Civil Procedure 23(a) and (b), and the proposed notice plan is reasonable. EUCPs therefore
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`request that the Court schedule a preliminary approval hearing.
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`II.
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`SUMMARY OF LITIGATION
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`EUCPs have been litigating this case diligently for over four years. On December 14, 2016,
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`the Court appointed Hagens Berman Sobol Shapiro LLP as lead counsel supported by Cohen
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`Milstein Sellers & Toll, PLLC as additional counsel for the putative EUCP class. ECF No. 248.
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`Two days later, EUCPs filed a Consolidated Amended Class Action Complaint alleging that
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`defendants conspired to suppress chicken output and raise chicken prices, in violation of the
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`Sherman Act and many state antitrust and consumer protection laws. ECF No. 255.5 On November
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`1 In this memorandum, “Fieldale” refers to the Defendant Fieldale Farms Corporation.
`2 “Peco” refers to Defendant Peco Foods, Inc.
`3 “George’s” refers to Defendants George’s Inc. and George’s Farms, Inc.
`4 “Tyson” refers to Defendants Tyson Foods, Inc., Tyson Chicken, Inc., Tyson Breeders, Inc.,
`and Tyson Poultry, Inc.
`5 EUCPs’ initial Consolidated Amended Class Action Complaint alleged that fourteen chicken
`processors maintained a per se unlawful conspiracy to suppress chicken output and raise prices.
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`20, 2017, the Court denied defendants’ motions to dismiss. ECF No. 541.
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`Since then, EUCPs have engaged in rigorous discovery. Working with counsel representing
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`the other classes, EUCPs have collected over eight million documents and taken over 100
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`depositions of defendants’ employees and third parties, and collected and analyzed voluminous
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`structured data. Scarlett Decl., ¶ 3.6 In addition, all current class representatives sat for depositions.
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`On April 29, 2019, EUCPs amended their pleadings to add a claim that defendants participated in
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`an anticompetitive information exchange, in violation of the Rule of Reason. ECF No. 2170.
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`On June 21, 2019, after the United States Department of Justice (“DOJ”) moved to
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`intervene in this case, the Court issued a partial stay of discovery. ECF No. 2302. On October 16,
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`2019, the Court extended the partial stay until June 27, 2020. ECF No. 3153. To date, the DOJ’s
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`investigation has resulted in multiple indictments for bid rigging and price fixing. See Superseding
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`Indictment, United States v. Penn, 1:20-cr-00152-PAB (D. Co. Oct. 6, 2020), ECF. No. 101.
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`On October 30, 2020, EUCPs filed a motion for class certification, supported by two expert
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`declarations and a declaration provided by Fieldale (described in further detail below). ECF No.
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`3971. The motion marshalled substantial econometric evidence, documentary evidence, and
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`deposition testimony to show that EUCPs’ claims are susceptible to class-wide treatment. See id.
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`III.
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`SUMMARY OF SETTLEMENT NEGOTIATIONS AND TERMS
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`Each of the settlements was the product of confidential, protracted, intense arms-length
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`negotiations and includes both monetary relief for the class and cooperation in EUCPs’ litigation
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`against the non-settling defendants.
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`ECF No. 255. On February 12, 2018 EUCPs filed an Amended Complaint naming Agri Stats and
`three additional chicken processors as defendants. ECF No. 716.
`6 “Scarlett Decl.” refers to the Declaration of Shana E. Scarlett in Support of Motion for
`Preliminary Approval of Settlement Agreements Between End-User Consumer Plaintiffs and
`Tyson, Fieldale, Peco Foods and George’s Defendants, concurrently filed herewith.
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`A.
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`Fieldale Settlement
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`EUCPs first discussed settlement with Fieldale in September of 2017, without reaching
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`resolution. Scarlett Decl., ¶ 4. Negotiations resumed between November 2018 and March 2019,
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`after EUCPs participated in depositions of Fieldale employees and gathered substantial
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`documentary evidence. Id. Again, however, these discussions were unsuccessful. Id. In August of
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`2020, after Plaintiffs took dozens more depositions of defendants’ employees and third parties,
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`settlement discussions resumed. Id. These negotiations continued intensely through October 2020,
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`and included discussions about cooperation Fieldale could provide to support EUCPs’ motion for
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`class certification. Id. EUCPs and Fieldale signed a memorandum of understanding on October
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`30, 2020, and signed the final settlement agreement on December 3, 2020. Id.; Ex. A.
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`The settlement provides that Fieldale will pay $1.7 million ($1,700,000) into a settlement
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`fund that will be used to compensate the EUCP class and cover litigation fees and expenses,
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`including the cost of notifying class members and administering the settlement. Ex. A. Lead
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`Counsel believe this sum is fair and reasonable in light of Fieldale’s market share of class products,
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`and the significant cooperation Fieldale agreed to provide:
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`Fieldale executed an agreed-upon declaration, which Plaintiffs used
`in support of their motion for class certification. See Exhibit 1, ECF
`No. 3972-1. Upon request, Fieldale will provide one witness at trial
`to confirm the contents of the declaration. Fieldale will also make
`reasonable efforts to provide a stipulation, declarations, or affidavits
`relating to the authentication or admissibility of documents, if
`reasonably requested by Plaintiffs in connection with the action.
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`Id., Ex. A.
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`In exchange, EUCPs agree to release:
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`any and all claims [against Fieldale] asserted in the Action and any
`and all existing or potential claims, demands, actions, suits, causes
`of action, upon any theory of law or equity, whether class,
`individual, or otherwise in nature (whether or not any Class Member
`has objected to the settlement or makes a claim upon or participates
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`the Settlement Fund, whether directly, representatively,
`in
`derivatively or in any other capacity) that Releasing Parties (defined
`below), or each of them, ever had, now has, or hereafter can, shall,
`or may have on account of, or in any way arising out of, any and all
`known and unknown, foreseen and unforeseen, suspected or
`unsuspected, actual or contingent, liquidated or unliquidated,
`claims, causes of action, injuries, damages or other relief, arising
`from or in connection with any act or omission during the Class
`Period relating to or referred to in the Action or arising from the
`factual predicate of the Litigation.
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`Ex. A. The released claims “do not include claims asserted against any other Defendant or
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`against any Unrelated Co-Conspirator.” Id.
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`B.
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`Peco and George’s Settlements
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`EUCPs first discussed settlement with Peco and George’s in September 2019. Scarlett
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`Decl., ¶ 7. Intense negotiations continued until February 2020, but the parties could not reach an
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`agreement. Id. Settlement discussions resumed in July of 2020 and continued until October 28,
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`2020, when EUCPs signed settlement agreements with both defendants. Id.at 7-8.
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`The settlements provide that Peco and George’s will each pay $1.9 million ($1,900,000)
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`into settlement funds that will be used to compensate the EUCP class and cover litigation fees and
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`expenses, including the cost of notifying class members and administering the settlement. Id. at 8,
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`Ex. B-C. Lead Counsel believe this sum is fair and reasonable in light of Peco and George’s market
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`share of class products, and the cooperation they agreed to provide in the form of reasonable
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`“declarations or affidavits relating to authentication or foundation for admissibility of documents
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`(e.g. business records) and/or things at issue, if reasonably requested by the Plaintiffs in connection
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`with this Action.” Id.
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`In exchange, EUCPs agree to release:
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`[A]ny and all claims [against Peco and George’s] asserted in the
`Action and any and all existing or potential claims, demands,
`actions, suits, causes of action, upon any theory of law or equity,
`whether class, individual, or otherwise in nature (whether or not any
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`Class Member has objected to the settlement or makes a claim upon
`or participates
`in
`the Settlement Fund, whether directly,
`representatively, derivatively or in any other capacity) that
`Releasing Parties (defined below), or each of them, ever had, now
`has, or hereafter can, shall, or may have on account of, or in any way
`arising out of, any and all known and unknown, foreseen and
`unforeseen, suspected or unsuspected, actual or contingent,
`liquidated or unliquidated, claims, causes of action, injuries,
`damages or other relief, arising from or in connection with any act
`or omission during the Class Period relating to or referred to in the
`Action or arising from the factual predicate of the Litigation.
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`Ex. B-C. The released claims “do not include claims asserted against any other Defendant or
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`against any Unrelated Co-Conspirator.” Id.7
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`C.
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`Tyson Settlement
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`EUCPs first discussed settlement with Tyson in January 2020. Scarlett Decl., ¶ 10.
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`Negotiations were mediated by Judge Daniel Weinstein (ret.). In early April 2020, the parties
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`engaged in a mediated negotiation but were unable to reach agreement. Negotiations continued
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`through July 2020, but the parties did not reach agreement. In December 2020, the parties agreed
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`to continue negotiations with another mediation day facilitated by Judge Weinstein. Following an
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`intense day-long mediation in mid-January 2021, the parties reached an agreement. The final
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`settlement agreement was signed on February 24, 2021. Id., ¶ 11.
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`The settlement provides that Tyson will pay $99 million ($99,000,000) into a settlement
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`fund that will be used to compensate the EUCP class and cover litigation fees and expenses,
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`including the cost of notifying class members and administering the settlement. Ex. D. Lead
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`Counsel believe this sum is fair and reasonable in light of Tyson’s market share of class products,
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`and the significant cooperation Tyson agreed to provide, including:
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`7 The settlements with Peco and George’s may be terminated in the unlikely event that more
`than 500,000 potential class members “timely and validly exclude themselves from the Settlement
`Class.” Id.
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` Up to three then-current or former Tyson employees as live witnesses; and “[a]t
`EUCP’s request, one of those witnesses will include an employee with extensive
`experience in working with Agri Stats reports.”
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` An agreement not to oppose the depositions of six individuals, agreed to by the
`Parties.
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` Assurances that Tyson will provide “reasonable efforts to respond to a reasonable
`number of EUCPs’ questions regarding and otherwise assist EUCPs to understand
`structured data produced by Tyson.”
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` An agreement to “authenticate documents and/or things produced in the Action
`where the facts indicate that the documents and/or things at issue are authentic,
`whether by declarations, affidavits, depositions, hearings and/or trials as may be
`necessary for the Action.”
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` An agreement to meet with EUCPs for 7 hours and proffer a reasonably detailed
`description of the principal facts known to Tyson that are relevant to the alleged
`conduct at issue in the Action, including facts previously provided to the DOJ or
`any other U.S. government investigative authority in response to subpoenas or
`otherwise relating to bid-rigging or price fixing involving Broilers.
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`In exchange, EUCPs agree to release:
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`[A]ny and all Claims and any and all existing or potential, known or
`unknown, Claims, demands, actions, suits, causes of action, upon
`any theory of law or equity, whether class, individual, or otherwise
`in nature (whether or not any Class Member has objected to the
`settlement or makes a claim upon or participates in the Settlement
`Fund, whether directly, representatively, derivatively or in any other
`capacity) that Releasing Parties (defined below), or each of them,
`ever had, now has, or hereafter can, shall, or may have on account
`of, or in any way arising out of, any and all known and unknown,
`foreseen and unforeseen, suspected or unsuspected, actual or
`contingent, liquidated or unliquidated, claims, causes of action,
`injuries, damages or other relief, arising from or in connection with
`any act or omission during the Class Period relating to or referred to
`in the Action or arising from the factual predicate of the Litigation
`or any conduct that could or should have been challenged, raised or
`alleged in the Action (“Released Claims”). Notwithstanding the
`above, “Released Claims” do not include claims asserted against any
`other Defendant or against any Unrelated Co-Conspirator. Released
`Claims includes all such claims for the period from and including
`January 1, 2009 through December 31, 2020.
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`Ex. D.
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`EUCPs settlement agreement with Tyson refers to a judgment sharing agreement among
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`certain defendants. This judgment sharing agreement provides that the remaining defendants will
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`not be jointly and severally liable for damages that reflect a settling defendant’s share of damages.
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`The members of this judgment sharing agreement previously agreed how they would allocate each
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`defendant’s share of liability based on their respective sales. Because of this judgment sharing
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`agreement, if EUCPs are awarded damages and final judgment, Tyson’s portion of the damages
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`would be removed from the calculation of the award.8
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`IV.
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`THE SETTLEMENTS FALL WITHIN THE RANGE OF POSSIBLE APPROVAL
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`“It is axiomatic that the federal courts look with great favor upon the voluntary resolution
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`of litigation through settlement.” Armstrong v. Bd. of Sch. Dirs., 616 F.2d 305, 312 (7th Cir.
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`1980)), overruled on other grounds, Felzen v. Andreas, 134 F.3d 873 (7th Cir. 1998). However,
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`Courts must review class action settlements to ensure that they are “fair, reasonable, and adequate.”
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`Fed. R. Civ. P. 23(e)(2).
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`“The first step in district court review of a class action settlement is a preliminary, pre-
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`notification hearing to determine whether the proposed settlement is “within the range of possible
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`approval.” Gautreaux v. Pierce, 690 F.2d 616, 621 n.3 (7th Cir. 1982) (internal quotation marks
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`omitted). In other words, the Court must consider whether it “will likely be able to” approve the
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`settlement as fair, reasonable, and adequate. Fed. R. Civ. P. 23(e)(1)(B)(i); see Fed. R. Civ. P.
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`23(e)(2).
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`It is highly likely that EUCPs’ agreements with the Settling Defendants are fair, reasonable,
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`and adequate. A “presumption of fairness, adequacy, and reasonableness may attach to a class
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`8 The settlement with Tyson may be terminated in the event that more than 10,000 potential
`class members “timely and validly exclude themselves from the Settlement Class.” Id.
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`settlement reached in arm’s-length negotiations between experienced, capable counsel after
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`meaningful discovery.” Am. Int’l Grp., Inc. v. ACE INA Holdings, Inc., Nos. 07 Civ. 2898, 09
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`Civ.2026, 2012 WL 651727, at *10 (N.D.Ill. Feb.28, 2012) (quoting Wal–Mart Stores, Inc. v. Visa
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`USA, Inc., 396 F.3d 96, 116 (2d Cir.2005)). As explained above, each of the settlements here was
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`the result of arm’s length negotiations over several months, which took place after EUCPs
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`(working with other plaintiffs) collected over eight million documents and deposed more than 100
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`witnesses. The settlements should therefore be accorded a presumption of fairness.
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`Furthermore, “class representatives and class counsel have adequately represented the
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`class.” Fed. R. Civ. P. 23(e)(2)(A). Class representatives have all prepared and sat for depositions
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`and worked diligently to serve the interests of the class. See Scarlett Decl., Exs. E-F. In addition,
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`the settlements provide “adequate” relief for the class, in accordance with Fed. R. Civ. P.
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`23(e)(2)(C). Fieldale and Peco each represent an estimated 1.7% of market share for EUCP class
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`products. Likewise George’s represents 1.2%. In contrast, Tyson represents approximately 33.3%
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`of the EUCP market. See Scarlett Decl., ¶ 14. The $104 million settlements represent more than
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`$2.74 million for each point of market share – putting the value of this case well over $274 million
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`at this stage in the litigation. This is an outstanding result. In addition to the financial
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`compensation, the cooperation that EUCPs have secured from the settlements will bolster EUCPs’
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`claims against the fourteen non-settling defendants. EUCPs have also identified a reasonable
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`method of distributing relief to class members. Finally, the proposed settlements “treat[] class
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`members equitably relative to each other.” Fed. R. Civ. P. 23(e)(2)(D). Funds will be awarded
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`based on the amount of class products purchased.
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`V.
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`THE COURT SHOULD CERTIFY THE PROPOSED SETTLEMENT CLASS
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`Each of the settlements proposes the same Settlement Class, which is consistent with the
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`one alleged in the End-User Consumer Plaintiffs’ Fifth Consolidated Amended Class Action
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`Complaint, Aug. 7, 2020, ECF Nos. 3747 (redacted), 3748 (sealed), defined as:
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`All persons and entities who indirectly purchased fresh or frozen
`raw chicken (defined as whole birds (with or without giblets), whole
`cut-up birds purchased within a package, or “white meat” parts
`including breasts and wings (or cuts containing a combination of
`these), but excluding chicken that is marketed as halal, kosher, free
`range, or organic) from Defendants or alleged co-conspirators for
`personal consumption, where the person or entity purchased in
`California, District of Columbia, Florida, Hawaii, Illinois, Iowa,
`Kansas, Maine, Massachusetts, Michigan, Minnesota, Missouri,
`Nebraska, Nevada, New Hampshire, New Mexico, New York,
`North Carolina, Oregon, Rhode Island (after July 15, 2013), South
`Carolina, South Dakota, Tennessee, Utah, and Wisconsin from
`January 1, 2009 (except for Rhode Island, which is from July 15,
`2013) to July 31, 2019.
`
`As explained below, this Settlement Class satisfies all the requirements of Rule 23.
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`A.
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`The Proposed Settlement Class Satisfies Rule 23(a)
`1.
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`Numerosity
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`The numerosity requirement of Rule 23(a)(1) is satisfied where joiner of all putative class
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`members is “impracticable.” Prac. Mgmt. Support Servs., Inc. v. Cirque du Soleil, Inc., 301 F.
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`Supp. 3d 840, 849 (N.D. Ill. 2018). Generally, a class of forty or more plaintiffs is sufficient to
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`satisfy the numerosity requirement. Id. As explained in Plaintiffs’ motion for class certification,
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`Plaintiffs are seeking to certify a class of millions of chicken consumers, which clearly meets this
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`bar. See EUCPs’ Mot. for Class Cert. at 20, ECF No. 3971.
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`2.
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`Commonality
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`There are also “questions of law or fact common to the [EUCP] class.” Fed. R. Civ. P.
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`23(a)(2). Commonality exists where plaintiffs’ claims depend on a “common contention . . . of
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`such a nature that it is capable of classwide resolution—which means that determination of its truth
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`or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”
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`Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). EUCPs are relying on several common
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`contentions, including: (1) defendants conspired to decrease chicken output and suppress chicken
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`prices; and (2) defendants’ conduct caused overcharges for chicken consumers. See EUCPs’ Mot.
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`for Class Cert. at 20-21, ECF No. 3971.
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`3.
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`Typicality
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`Under Rule 23(a), typicality is satisfied if “the claims or defenses of the representative
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`parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a). The typicality
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`requirement “directs the district court to focus on whether the named representatives’ claims have
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`the same essential characteristics as the claims of the class at large.” Retired Chicago Police Ass’n
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`v. City of Chicago, 7 F.3d 584, 597 (7th Cir. 1993). In the antitrust context, a “plaintiff’s claim is
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`typical if it arises from the same event or practice or course of conduct that gives rise to the claims
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`of other class members” (De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir.
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`1983) (internal quotation marks and citation omitted)), and “plaintiffs and all class members
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`alleg[e] the same antitrust violations by defendants.” In re Rubber Chems. Antitrust Litig., 232
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`F.R.D. 346, 351 (N.D. Cal. 2005). Here, typicality is satisfied because EUCPs’ claims are based
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`on the same antitrust conspiracy. See EUCPs’ Mot. for Class Cert. at 21-22, ECF No. 3971.
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`4.
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`Adequacy
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`The proposed plaintiffs are adequate representatives of the proposed class. Fed. R. Civ. P.
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`23(a)(4). The adequacy requirement is satisfied where the named representatives have a sufficient
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`interest in the outcome of the case to ensure vigorous advocacy, and do not have interests
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`antagonistic to those of the class. Saltzman v. Pella Corp., 257 F.R.D. 471, 480 (N.D. Ill. 2009).
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`The named plaintiffs have no material conflict with other class members. Each purchased chicken
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`from grocery stores, unaware of the existence of defendants’ alleged agreement to suppress the
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`price and supply of chicken. No one individual class member could avoid the claimed overcharges.
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`Each named plaintiff is aligned with the class in establishing defendants’ liability and maximizing
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`class-wide damages. See EUCPs’ Mot. for Class Cert. at 22, ECF No. 3971.
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`B.
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`The Proposed Settlement Class Satisfies Rule 23(b)(3)
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`Under Rule 23(b)(3), plaintiffs must show that “questions of law or fact common to class
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`members predominate over any questions affecting only individual members, and that a class
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`action is superior to other methods for fairly and efficiently adjudicating the controversy.” Fed. R.
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`Civ. P. 23(b)(3). Both of these requirements are satisfied here.
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`First, common questions of law or fact predominate over individual questions. “Common
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`questions can predominate if a ‘common nucleus of operative facts and issues’ underlies the claims
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`brought by the proposed class.” Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 815
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`(7th Cir. 2012) (quoting In re Nassau Cnty. Strip Search Cases, 461 F.3d 219, 228 (2d Cir. 2006));
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`see also Kleen Prods. LLC v. Int’l Paper Co., 831 F.3d 919, 925 (7th Cir. 2016). Here, a series of
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`common questions lies at the heart of all plaintiffs’ claims, including: whether defendants
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`conspired to lower chicken output and suppress prices; whether defendants’ information exchange
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`was anticompetitive; whether defendants’ conspiracy caused market-wide supracompetitive
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`chicken prices; and whether higher chicken prices were passed on to chicken consumers. See
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`EUCPs’ Mot. for Class Cert. at 23-43, ECF No. 3971.
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`Second, a class action is the superior mechanism for trying plaintiffs’ claims. “Rule
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`23(b)(3)’s superiority requirement . . . is comparative: the court must assess efficiency [of a class
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`action] with an eye toward other available methods.” Mullins v. Direct Digital, LLC, 795 F.3d 654,
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`664 (7th Cir. 2015) (internal quotation marks omitted). Rule 23 instructs that the matters pertinent
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`to this inquiry include: (a) class members’ interests in individually controlling the prosecution of
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`separate actions; (b) whether other litigation exists concerning this controversy; (c) the desirability
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`of concentrating the litigation in this forum; and (d) any difficulties in managing a class action.
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`Fed. R. Civ. P. 23(b)(3). In this case, the first three factors weigh heavily in favor of class
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`certification: class members have “little economic incentive to sue individually based on the
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`amount of potential recovery involved, there are no known existing individual lawsuits [filed by
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`end-user consumers], and judicial efficiency is served by managing claims in one proceeding.”
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`Cirque du Soleil, Inc., 301 F. Supp. 3d at 856; see EUCPs’ Mot. for Class Cert. at 43-44, ECF No.
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`3971.
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`At the same time, there are no difficulties in managing this case as a class action. Litigating
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`the claims of the class members from different States in this Court does not present manageability
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`concerns because all class members purchased chicken in states that have an antitrust or consumer
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`statute that tracks the federal Sherman Act, ensuring that the core questions of liability will be
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`proved with common evidence. See EUCPs’ Mot. for Class Cert. at 43-44, ECF No. 3971.
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`Finally, the proposed Settlement Class is ascertainable. Here, a class member may self-
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`identify simply by reviewing the class definition. Moreover, as explained in the next section,
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`EUCPs can use grocery store data as an additional mechanism to help identify class members. See
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`id.
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`VI.
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`EUCPS PROPOSE TO SEND NOTICE AFTER THE CERTIFICATION OF
`A LITIGATION CLASS, OR AFTER THEY HAVE COLLECTED
`SUFFICIENT CONTACT INFORMATION
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`After a Court preliminarily approves a settlement under Rule 23, class members must be
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`notified of the settlement. See Fed. R. Civ. P. 23(3)(1)(B). The notice must be “the be